TUPE Myths

28/11/2019

Gig economy workers have found themselves at the centre of another Employment Tribunal decision, this time with potentially significant consequences for TUPE.

The case of Dewhurst v Revisecatch & City Sprint addressed the question of whether gig economy workers (casual staff who work independently) are covered by TUPE.

In deciding the matter Judge Joffe had to interpret the Acquired Rights Directive alongside TUPE. Her view was that the words ‘any individual who works for another person whether under a contract of service or apprenticeship or otherwise’ which defines an employee in TUPE, also extends to ‘workers’. She concluded that ‘workers’ fall into the ‘or otherwise’ part of the definition, which means TUPE would apply to them.

The decision may well be appealed so it is not conclusive yet but if this is agreed by the appeal courts it will have serious consequences on future TUPE transfers.

Currently companies use workers to deal with the ebb and flow of their work to help meet periods of higher demand. Some people like the flexibility of being a worker and prefer to choose their own hours, working a shift when called upon.

The impact of the Employment Tribunal decision will affect this going forward as those companies taking on a new contract from an outgoing company would need to take on not only the employees of the transferor but also the workers.

The outgoing company may well not want to lose their bank of workers and the workers themselves may feel their ability to choose the work they do has been taken away.

Of course, the incoming company will have to deal with people under contracts as well as those who don’t have set hours and can turn down shifts. That company might not have any workers and it is yet to be clarified what would happen with regard to making changes after a transfer.

This case is certainly one to watch as on the one hand I can see the benefits to workers who will follow the work and retain the ability to choose their hours, but on the other this further complicates a piece of legislation which is already dreaded by employers.

If you have an enquiry about any employment law matter contact Laura on 01782 205000 or email laura.franklin@beswicks.com